Rohingya and Bangladeshi refugees are transported to a navy boat where they will be taken to mainland Malaysia, after they landed at Pantai Pasir Berdengung beach in Langkawi, Kedah, May 15, 2015. — Reuters file pic

KUALA LUMPUR, Nov 19 — A judge has ordered that seven asylum-seeking Rohingya Muslim children be released immediately from detention by immigration authorities in Kedah.

Lee Shee Pin, one of the lawyers representing the children for free, said the High Court judge in Alor Setar decided that the children — some as young as five years’ old — be released to a children’s shelter after being held for over seven months.

“The judge in placing the children at the shelter held that the continued detention of these minors is in breach of their rights under Article 22 of the Convention on the Rights of the Child read together with the preamble of the Child Act which guarantees the necessary protection and humanitarian assistance to be given to them,” he told Malay Mail.

The judge noted that the children had fled from Myanmar due to citizenship issues, and that a 14-day detention order for investigation purposes was issued by the Immigration Department after their April 3 arrival in a boat of 56 Rohingyas on the shores of Langkawi.

The judge said the children had to date not been produced in court for the detention order, and that they had not been charged or convicted of any offences, adding that the Kedah immigration authorities had subsequently on April 16 issued a deportation order on them.

The High Court agreed that immigration authorities have the power to deport or detain a non-citizen before the latter is deported.

While the High Court ruled that the detention order on the children was valid ,as they were non-citizens who did not have the approval to enter and remain in Malaysia, the judge also noted the requirement for the United Nations High Commissioner for Refugees’ (UNHCR) protection and humanitarian aid as they were children with one as young as five.

The judge decided that the children should not be detained further at the Kedah detention facility, allowing their request to be placed in a protection centre where their welfare could be assured.

“Without need for further elaboration, this court is of the view that, continued detention of the applicants at the Belantik detention camp, has violated the children’s rights under CRC and also the Child Act 2001 that also recognises the right to protection and assistance in all situation to children regardless of race, colour, gender, language, religion and so on,” the judge said in the judgment sighted by Malay Mail.

The CRC refers to the Convention on the Rights of the Child which Malaysia had ratified, with the international treaty’s Article 22 stating that countries who signed the convention should take appropriate measures to ensure a child seeking refugee status receives protection and humanitarian assistance.

The High Court said it felt that the Kuala Lumpur-based Yayasan Chow Kit would be a suitable shelter for the seven children, also saying that RM500 would have to be posted by a Malaysian each for each child as a guarantee.

“The safety and welfare of the applicants at the ‘shelter’ should also be assured during the detention on them and they should be made ‘available’ at all times needed by the authorities for any further action on them, including to be present in court to answer any charges if there are such charges,” the judge said.

About the seven children

The seven children comprise five boys aged 10 to 14, as well as two girls aged 14 and five.

Their lawyers previously said the children were mostly unaccompanied by adults and that the UNHCR, lawyers and family members were unable to access them at the time when the habeas corpus application was filed on September 10.

In the application to challenge their allegedly unlawful detention and secure their release, the children had named the Belantik Immigration depot’s commandant, the Kedah Immigration department’s director, the Immigration director-general, and the Home Ministry.

Their lawyers had previously highlighted that the Rohingya children’s indefinite detention was invalid as they may not be deported due to their statelessness.

The Bar Council and the Human Rights Commission of Malaysia (Suhakam) held a watching brief for the case, with the children represented by Collin Andrew, Chan Yen Hui and Lee in cooperation with UNHCR.